Su!

re acy Clause "rt #, $ec %

Does t e const. make federal !ower exclusive or as Congress ex!licitly !rohi+ited state regulation?

Ex!ress Pree !tion

Hierarchy of Law

Constitution Did Congress occu!y the field? Field Pree !tion Gade v Natl Waste Mgmt

Self Executing Treaties Does state law indirectly or directly conflict wit federal law? Conflict Pree !tion Gade v Natl Waste Mgmt

&ederal Law sets a floor !elow w ic state law cannot go !ut does not set a ceiling.

Legislative 'eto

,NS v Chadha Congress may not veto action of t e e'ecutive !ranc inconsistent wit t e principles of !icameral and t e presentment clause.

Non-Self Executing Treaties

Federal Law

Executive Orders

State Police Power Amend 10

Is it an enu erated !ower?

Federalis

State Law "ne unerated Powers Look to Commerce Clause, Due Process Clause, and Necessary and Proper Clause, etc . . . for Constitutional justification

Non-delegation &octrine

Congress may not delegate legislative powers to ot er !ranc es unless it specifies intelligi+le !rinci!les to guide suc delegation.

Su!re acy Clause #Pree !tion$ % Non-&elegation &octrine % Legislative 'eto % State Police Power #( end )*$

Standing

Is t ere in/ury in fact?

Is t ere causation?

Is t ere redressa+ility?

Is it a third-!arty?

Is t e (rd party una+le to assert their own rights?

No standing Is t ere a s!ecial relationshi! !etween victim and (rd party?

Su!re e Court -urisdiction Art 3, Sec 2

Is t ere a case or controversy?

Is it a !olitical 1uestion?

2a3er v Carr *+, as t e Constitution as assigned decision making to anot er !ranc ? *%, is t e matter is in erently not one t e judiciary can decide? Is it a generali4ed in/ury?

Does t e injury adversely affect t e victim)s relations ip wit t e (rd party?

No standing

No /urisdiction

Does t e case affect a +assadors. !u+lic inister and consuls, and t ose w ere a state is a !arty?

Original -urisdiction Standing Exists

Is t e case an appeal of in/ective relief of a 0 /udge !anel?

&irect (!!eal

Certiorari

Standing % -urisdiction

Sovereign , unity Amend 11

Is it for da age or e1uita+le relief?

Is It in federal court?

Is it a state official?

Is it state law?

2arred

Not 2arred

&or Federal law actions a citi.en cannot sue their own state in its own courts wit out t e states consent/ owever, t ey may !ring suit in another state against their own state.

" state cannot !e sued !y its own citi4ens, or citi4ens of another state, or foreign country

Not 2arred

Ti eliness

Is t ere a real in/ury or i inent threat t ereof?

Is t ere a live controversy at eac stage of review?

unities and Privileges

Is it a -udicial officer?

0udges ave a!solute immunity from civil lia+ility resulting from judicial acts.

,ntergovern ental , unities

5i!e

Is t e case ca!a+le of re!etition and yet evading review?

Is it a Executive officer?

Ti ely 6cCulloch v 6& 1 e states ave no !ower to regulate or tax t e federal government/ owever, t ey may impose generally a!!lica+le indirect taxes so long as t ey do not unreasona+ly +urden t e federal government.

Clinton v -ones 1 e president may not !e sued for civil damages for acts performed as part of t e presidents official res!onsi+ilities !ut may !e for for actions +efore they too3 office7

Is t e action +y the state?

Is it a class action?

Is it a Legislative officer? -as t ere voluntary cessation wit a reasona+le ex!ectation of re!eata+ility?

Co andeering &octrine Printz v US & N v US Congress cannot command states to enact specific legislation or administer a federal regulatory program

S!eech or &e+ate Clause Art 1, Sec 6 2em!ers of Congress are immune from civil and cri inal lia!ility for statements and conduct made in the regular course of the legislative !rocess.

6oot

Ti eliness % ,

unities #Sovereign. ,ntergovern ental. -udicial. Executive. and Legislative$

Co erce Clause "rt +, $ec 3, Cl (

Does it regulate channels of interstate commerce?

"S v Lo!e4 4road congressional power

Taxing Power "rt +, $ec 3, Cl +

Does it impose an exceedingly heavy +urden?

Does it regulate ,nstru entalities of interstate commerce?

Does it limit to willful violations?

Penalty NFIB v Sebelius

Does it su+stantially affect interstate commerce?

Is it econo ic activity?

8on4ales v 5aich "567 as long as t ere is a rational +asis for concluding t at t e aggregate su!stantially affects interstate commerce.

Is it collected through not nor al eans?

Not ,nterstate Co erce

"S v Lo!e4 *+, Congressional findings *%, Link to interstate commerce *(, 0urisdictional element *w et er t e gun ad moved in interstate commerce,

'alid Tax NFIB v Sebelius

S!ending Power "rt +, $ec 3, Cl +

Does it !ro ote the general welfare?

Is it una +iguous9

&oes it relate to the Federal interest9

Is it not coercive9

'alid Conditional S!ending S.D. v Dole

,nvalid Nonresident citi.ens are protected against discrimination wit respect to funda ental rights or essential activities unless/ *+, t e non5resident is part of t e pro!lem t e state is attempting to solve/ and *%, 1 ere are no less restrictive means to solve t e pro!lem 6cCulloch v 6& Congress can pass legislation rationally related to its enumerated powers as long as it is/ *+, a legitimate end *%, wit in t e scope of t e constitution *(, !y appropriate means *8, and plainly adapted to t at end

Privileges : , unities Clause Art #,Sec 2, "l 1

, !ort-Ex!ort Clause Art 1, Sec 10

2rown v 6& 1 e states are !rohi+ited, without the consent of Congress, from imposing any ta' on imported or e'ported good.

Necessary : Pro!er Clause Art 1, Sec !, "l 1!

Co

erce Clause % Taxing Power % S!ending Power % Privileges : ,

unities % Necessary : Pro!er % , !orts-Ex!orts Clause

&or ant Co Clause

erce

Is it discri inatory *facial, applied, or motive, against out of state commerce?

Procedural &ue Process Amend & Amend 1# Sec 1

Is t ere a protected life. li+erty or !ro!erty interest?

Is it an ene y co +atant?

2ou ediene v 2ush 9nemy com!atants are entitled to eaningful o!!ortunities to +e heard !y neutral decision makers/ owever, t e e'ecutive aut ority may reduce +urdens !roug t on !y military conflict.

Is it an undue +urden on interstate commerce?

,nvalid 5egulation of ,nterstate Co erce

No &ue Process 5e1uired Is it a !arental right?

6oore v East Cleveland Cessation of parental rig ts as a eig tened !urden of proof re:uiring clear and convincing cvidence

Does it regulate extraterritorial activity?

?nd ( end ent

'alid Pi'e v (r)ce "*)rc*

&C v7 Heller : 6c&onald v Chicago 1 e %nd amendment guarantees an individual@s right to !ossess a firear / owever, it Is not unli ited and regulations imposing condition on t e sale of arms as wells as pro i!itions on/ *+, concealed weapons, *%, possession !y felons and mentally ill, and *(, carrying in sensitive places are presumed to !e legitimate.

Is it a !u+lic or <for cause= employee?

Cleveland 2d7 Of Educ7 ' Louder ill " formal earing is not re:uired, as long as t ere is a !reter ination notice, an o!!ortunity to res!ond, and a !ost-ter ination evidentiary hearing.

Su+stantive &ue Process Amend & Amend 1# Sec 1

Does it infringe on a funda ental right?

Strict Scrutiny 1 e law must !e t e least restrictive means to ac ieve a co !elling govern ent interest.

If a funda ental right is infringed upon for all !ersons t en it is a su+stantive due !rocess issue. If infringed upon for a class of !ersons t en it is an e1ual !rotections issue.

6athews v Eldridge In determining t e amount of process due t e court considers/ *+, 1 e interest of t e individual *%, 1 e risk of error t roug procedure *(, 1 e cost and administrative !urden of additional process

5ational 2asis 1 e law must !e rationally related to a legiti ate state interest7

(+ortion $%e v Wade

Is t e fetus via+le?

1 e state)s interest in protecting fetal life may su!ersede a wo an;s right to choose/ owever, t ere must !e an exce!tion for the wo an;s health

'oid for 'agueness

"S v >illia s If a statute fails to provide a person of ordinary intelligence wit fair notice of what is !rohi+ited it is void for vagueness.

Cth ( end ent

5ight to -ury trial in cri inal cases.

Planned Parenthood v Casey "n undue +urden e'ists w en t e purpose or effect of a state law places su+stantial o+stacles in t e way of an a!ortion.

&or ant Co

erce Clause % &ue Process #Procedural. Su+stantive. 'agueness. 5ight to Possess a Firear

A( end ?B. and (+ortion$ % 5ight to -ury Trial #( end C$

E1ual Protections Clause Amend 1# Sec 1

Is t ere a funda ental right?

S3inner v OG If a fundamental rig t is infringed upon for a class of !ersons t e issue calls for strict scrutiny7

Is t ere a sus!ect classification *race, national origin, religion, and alienage,?

Strict Scrutiny 1 e law must !e t e least restrictive means to ac ieve a co !elling govern ent interest.

&iscri inatory ,ntent 2ust !e s own on t e part of t e government as eit er/ *+, &acial *%, "pplied *(, 2otive

If a funda ental right is infringed upon for all !ersons t en it is a su+stantive due !rocess issue. If infringed upon for a class of !ersons t en it is an e1ual !rotections issue.

Is t ere a 1uasi sus!ect classification *gender, and legitimacy,?

,nter ediate Scrutiny 1 e law must !e su+stantially related to an i !ortant govern ent interest.

Privileges : unities Clause Amend 1#, Sec 1

Slaughterhouse Cases 1 e !ill of rig ts are not privileges and immunities of national citi.ens ip wit in t e conte't of t e +8t amendment.

5ational 2asis 1 e law must !e rationally related to a legiti ate state interest.

Is t e class in :uestion sexual orientation?

5o er v Evans Cases involving gay rights ave t e additional re:uirement of @+ite,A meaning a s owing of discri inatory intent.

Enforce ent Clause Amend 1# Sec &

City of 2oerne v Flores 1 ere must !e a congruence and !ro!ortionality !etween t e injury to !e prevented and t e means adopted to ac ieve t at end.

)0th ( end ent +(an %n Slaver,-

-ones v (lfred H 6ayer Co Congress may adopt legislation rational related to +adges or incidents of slavery. 1 is includes regulating !ot !rivate and govern ent action.

Fth ( end ent

1 e <t "mendment acknowledges unenu erated rights.

Su+stantive <5atchet= Theory

&ic3erson v "S 6nce a civil right is esta!lis ed under t e constitution Congress cannot degrade t at rig t, !ut can increase t e stringency.

)Dth ( end ent +$ig*t t% .%te-

1 e +;t "mendment pro i!its t e state and federal government from denying citi.ens t e right to vote !ased on race, color, or previous condition of servitude

8riswold v CT =sed t e <t as justification for t e rig t to privacy under t e )Eth a end ent;s due !rocess clause.

5e edial Theory

City of 2oerne v Flores >emedial t eory, limits Congress?s ( end )E Sec D aut ority to enforcing only t ose rig ts recogni.ed !y t e $upreme Court.

2an on Slavery #( end )0$ % E1ual Protections #( end )E$ % 5ight to 'ote #( end )D$ % "nenu erated 5ights #( end F$

Funda ental Li+erty ,nterests

Gee! and 2ear (r s Mc2%nald v "*icag% 2" v 3eller

Privacy Gris/%ld v "0

Travel S*a1ir% v 0*%m1s%n Saenz v $%e

E1ual Protection >everse Incorporated in (%lling v S*ar1e

-ury Trial 2)ncan v 4%)isiana

(+ortion $%/ v Wade

Contrace!tion 5isenstadt v (aird Gris/%ld v "0

Sexual Privacy 4a/rence v 06

5ear Children 0r%7el v Granville

5elated Persons to Live Together M%%re v 5ast "leveland

6arriage and Procreation S'inner v :<

Personal li+erties tend to !e funda ental w ereas econo ic li+erties do not.

Non-Funda ental Li+erty ,nterests

Court (ccess (%ddie v "0

Education San Ant%ni% v $%drig)ez

>elfare 2andridge v Williams

Freedo to Contract 4%c*ner v N

(ssisted Suicide Was*ingt%n v Gl)c's8erg P ysician assisted suicide is not a fundamental rig t under t e due process clause.

Pro!erty ,nterests (d9 :; $egents v $%t*

Is t ere a legiti ate clai of entitle ent via statute, employment contract or custom?

'alid Pro!erty ,nterest

No 'alid Pro!erty ,nterest

Funda ental Li+erty ,nterests % Non-funda ental Li+erty ,nterests % Pro!erty ,nterests

Executive Orders %)ngst%/n

-it ex!ress or i !lied authori4ation of Congress?

Highest E++ 1 e action is strongly presumed to !e valid.

Executive Privilege

Is it a cri inal case?

"S v Nixon Presidential communications must !e made availa!le in a criminal case if t e prosecution demonstrates a need for t e information

- en Congress has not s!o3en?

Twilight Hone 1 e action is invalid if it interferes wit t e operation or power of anot er !ranc .

Is it a civil case?

Cheney v "S &ist7 Ct In civil cases t e e'ecutive !ranc es decision will !e given greater deference !ecause t e need for information is weig tier in criminal cases

- en Congress has s!o3en to the contrary?

Lowest E++ 1 e action is likely invalid.

Present ent Clause Art 1, Sec =

-ill Congress !e in session in )* days?

Clinton v City of NI 1 e president cannot refuse !art of a +ill and approve t e rest !ecause it violates t e Presentment Clause/ owever, t ey can veto the entire +ill.

Treaties Powers "rt %, $ec %, Cl %

&a es : 6oore v 5egan 1 e president as t e aut ority to settle claims against foreign powers

Foreign (ffairs Powers "rt %, $ec (, Cl 8

"S v Curtis->right 1 e nationa government as a w ole and president as plenary foreign affairs powers.

Poc3et 'eto

8eneral Ty!es of (rgu ents

Textual (rgu ents -ords and Placement

Historical (rgu ents &ramer)s Intent, 1radition, Contemplated Balues and Natural Law

Structure of the Const7 >elations ip !etween !ranc es and entites

Precedent 4road vs Narrow interpretations

Policy

Executive Orders % Executive Privilege % Present ent Clause #'eto Power$ % Treaty Power % Foreign (ffairs Power